September 2, 2020- CYFD v. Joseph T., No. A-1-CA-38363

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IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO	1
STATE OF NEW MEXICO ex rel.	2
CHILDREN, YOUTH & FAMILIES	3
DEPARTMENT,	4
Petitioner-Appellee,	5
v. 	No. A-1-CA-38363	6
JOSEPH T.,	7
Respondent-Appellant,	8
and	9
CHRISTINA F.,	10
Respondent,	11
IN THE MATTER OF HAILE T. and	12
CHRIS-JOSEPH T.,	13
Children.	14
APPEAL FROM THE DISTRICT COURT OF TORRANCE COUNTY	15
Mercedes C. Murphy, District Judge	16
Children, Youth & Families Department	17
Rebecca J. Liggett, Chief Children’s Court Attorney	18
Santa Fe, NM	19
Kelly P. O’Neill, Children’s Court Attorney	20
Albuquerque, NM	21
for Appellee	22
Court of Appeals of New Mexico
Filed 9/2/2020 9:43 AM

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Susan C. Baker	1
El Prado, NM	2
for Appellant	3
Carol Kirk Rodriguez	4
Albuquerque, NM	5
Guardian Ad Litem	6
MEMORANDUM OPINION	7
VARGAS, Judge.	8
{1} 	Respondent Joseph T. (Father) appeals from the district court’s judgment	9
terminating his parental rights. In this Court’s notice of proposed disposition, we	10
proposed to summarily affirm. Father filed a memorandum in opposition, which we	11
have duly considered. Remaining unpersuaded, we affirm.	12
{2} 	In his memorandum in opposition, Father continues to contend that trial	13
counsel was ineffective. [MIO 9] Father has not asserted any new facts, law, or	14
argument that persuade us that our notice of proposed disposition was erroneous.	15
See Hennessy v. Duryea, 1998-NMCA-036, ¶ 24, 124 N.M. 754, 955 P.2d 683 (“Our	16
courts have repeatedly held that, in summary calendar cases, the burden is on the	17
party opposing the proposed disposition to clearly point out errors in fact or law.”);	18
State v. Mondragon, 1988-NMCA-027, ¶ 10, 107 N.M. 421, 759 P.2d 1003 (stating	19
that “[a] party responding to a summary calendar notice must come forward and	20
specifically point out errors of law and fact[,]” and the repetition of earlier arguments	21

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does not fulfill this requirement), superseded by statute on other grounds as stated	1
in State v. Harris, 2013-NMCA-031, ¶ 3, 297 P.3d 374. We therefore refer Father to	2
our analysis therein.	3
{3} 	To the extent Father argues that trial counsel’s decision not to call additional	4
witnesses was “presumptively ineffective” despite the absence of any demonstration	5
of prejudice resulting from that decision, he fails to support that assertion with any	6
citation to authority. See Curry v. Great Nw. Ins. Co., 2014-NMCA-031, ¶ 28, 320	7
P.3d 482 (“Where a party cites no authority to support an argument, we may assume	8
no such authority exists.”). Insofar as Father contends it is impossible to assess his	9
ineffective assistance of counsel claim without review of the transcript in order to	10
determine 	if 	there 	was 	error—namely, 	whether 	the 	failure 	to 	call 	witnesses	11
prejudiced him [MIO 4-5, 9]—that is not a proper basis for assignment to the general	12
calendar. See State v. Sheldon, 1990-NMCA-039, ¶ 5, 110 N.M. 28, 791 P.2d 479	13
(concluding that reassignment to a non-summary calendar is not required where it	14
“would serve no purpose other than to allow appellate counsel to pick through the	15
record” for possible error). Additionally, to the extent Father argues that any issue	16
analyzed under a de novo standard of review requires placement on the general	17
calendar, this contention is likewise unsupported by any citation to authority. See id.	18
Thus, Father has failed to carry his burden to demonstrate error on appeal. See	19
Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 1990-NMSC-100, ¶ 8, 111 N.M. 6,	20

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800 P.2d 1063 (stating that the appellate court presumes that the district court is	1
correct, and the burden is on the appellant to clearly demonstrate that the district	2
court erred).	3
{4} 	Accordingly, for the reasons stated in our notice of proposed disposition and	4
herein, we summarily affirm the district court’s order terminating his parental rights	5
to Children.	6
{5} 	IT IS SO ORDERED.	7
______________________________	8
JULIE J. VARGAS, Judge	9
WE CONCUR:	10
______________________________	11
MEGAN P. DUFFY, Judge	12
____________________________	13
BRIANA H. ZAMORA, Judge	14